SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SJ WEIR LTD v BIJOK & ANOR
[2011] SASCFC 165
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
23 December 2011
TORTS - NEGLIGENCE - GENERAL MATTERS
TORTS - NUISANCE - WHAT CONSTITUTES - PRIVATE NUISANCE
Appeal against award of damages to plaintiffs in negligence and nuisance.
Appellant undertook building work on land adjoining respondents' property - excavation work caused subsidence of adjoining land and damage to respondents' carport, driveway and house - retaining wall constructed by appellant found to be inadequate.
Whether the trial Judge was entitled to conclude from the evidence of Mr Vreugdenburg that the appellant proceeded to erect a retaining structure in contravention of the engineer's advice - whether the circumstances attracted the principle of res ipsa loquitur - whether liability in nuisance arose.
Held: Appeal dismissed.
Gray and Sulan JJ: Appellant breached duty of care by failing to provide adequate retention and by acting contrary to engineering advice - circumstances attracted the principle of res ipsa loquitur - breach was a material cause of the subsiding of the soil causing damage to property - negligence proven - further finding of liability in private nuisance open to trial Judge.
Blue J: As to nuisance, the trial Judge correctly found the nuisance caused the loss - as to negligence, the trial Judge correctly found that the appellant departed from the engineer's design - the doctrine of res ipsa loquitur applied and the appellant's negligence caused the loss - and s 72 of the Development Act did not apply becuase the appellant failed to prove negligence by the engineer or causation of loss.
Development Act 1993 (SA) s 72, referred to.
Bijok & Anor v S J Weir Pty Ltd [2011] SADC 20; Donoghue v Stevenson [1932] AC 562; Schellenberg v Tunnel Holdings (2000) 200 CLR 121; Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 85 ALJR 666; Watts v Rake (1960) 108 CLR 158, applied.
Jones v Dunkel (1959) 101 CLR 298; Piening v Wanless (1968) 117 CLR 498; Anchor Products Ltd v Hedges (1966) 115 CLR 493; Mummery v Irvings Pty Ltd (1956) 96 CLR 99; Bonomi v Backhouse (1859) EB & E 646; Backhouse v Bonomi (1861) 9 HL Cas 503; Dalton v Henry Angus & Co (1881) 6 App Cas 740; Brown v Robins (1859) 4 H & N 186 [157 ER 809]; Stroyan v Knowles (1861) 6 H & N 454 [158 ER 186]; Pantalone v Alaouie (1989) 18 NSWLR 119; Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127; Hargrave v Goldman (1963) 110 CLR 40; Walker v Adelaide City Corporation (2004) 88 SASR 225; Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738; Morgan v Lake Macquarie City Council [1993] NSWCA 184 (Unreported, NSW Court of Appeal, 2 September 1993); Savini…
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- AGLC
- SJ Weir Ltd v Bijok [2011] SASCFC 165
- Case
- [2011] SASCFC 165
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court concerned whether SJ Weir had committed private nuisance or been negligent in its conduct during the construction. Specifically, the court had to consider the adequacy of the design and implementation of temporary retaining walls and underpinning works intended to support the Bijoks' structures during the excavation for a basement carport on the adjoining development site.
The court's reasoning focused on the evidence presented regarding the design and communication of the retaining wall strategy. It was noted that while Meinhardt had prepared designs for a temporary retaining wall adjacent to the Bijoks' driveway, the extension of this design to the area near the carport was based on an assumption by SJ Weir. Furthermore, the court considered expert evidence that indicated a consensus at a site meeting that difficulties were anticipated with the proposed underpinning, and an alternative involving propping steel columns for the retaining wall was discussed. The court ultimately rejected the fourth ground of appeal, finding that the evidence supported the trial judge's findings of liability.
The appeal was dismissed.
Orders
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Background
Background to the litigation
Evidence
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Decision
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